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Legal Protections and Advocacy for Contingent or “Casual” Workers in the United States: A Case Study in Day Labor

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Abstract

Contingent, non-standard or “casual” work is present in large numbers in virtually every sector of the United States economy. Staffing strategies that use subcontracted or contingent work – strategies that once characterized only some low-wage workers such as garment and agriculture – have now spread to virtually every area of industry, including high tech and finance. United States law is a patchwork of provisions in separate federal statutes – and sometimes in each of the 50 states – governing whether a particular individual is an “employee.” Day laborers in the United States have particular challenging enforcing their limited rights. To address the issues of vulnerable low-wage workers being locked out of labor protections, activists have developed a number of strategies, including litigation and legislative campaigns. These strategies have more recently been broadened to facilitate developing leadership in a new social movement. In this article I draw a portrait of the day labor workforce from city- and state-based surveys of day laborers themselves. I then discuss strategies employed by day laborers to advance their workplace rights.

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Notes

  1. In this paper, the terms “nonstandard,” “casual” or “contingent” worker are used interchangeably to describe workers in the following situations: workers employed part-time including permanent part-time workers; casual or seasonal workers, day laborers, and on-call workers; independent contractors, especially misclassified and involuntary “independent contractors;” and workers paid by a labor intermediary, including staffing agencies, day labor agencies, labor contractors, or contract companies.

  2. US Department of Labor, Bureau of Labor Statistics, Employer Costs for Employee Compensation (Sep. 2005), at http://www.bls.gov/news.release/archives/ecec_09212005.pdf

  3. The terms “temp agency,” “day labor agency,” “temporary agency,” “labor intermediary” and “labor broker” are used interchangeably in this paper to describe for-profit entities that hire workers to perform work for a third-party or work-site employer.

  4. The United States Supreme Court has decided that where a statute lacks a specific definition of employment relationships, courts should apply the common law of “agency” and “master-servant” to determine whether a worker is an “employee” and if so the identity of the employer. Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992) (“Darden”).

  5. National Labor Relations Act, 29 U.S.C. § 151 et seq.

  6. Fair Labor Standards Act, 29 U.S.C. § 201 et. seq.

  7. Id. §§ 203(l), 206, 207(a)(2)(C), 211(c).

  8. The approach differs slightly from the common law right-to-control test. In one way, it is even harsher on workers than the common law: the OSHRC ignores several of the factors used in the right-to-control test that that would help subcontracted workers prove the existence of multiple employers. In another way, the OSHRC slightly liberalizes the common law standard: in determining who has control, the agency will analyze the “economic realities,” or the substance of relationships, rather than merely their form or contractual labels. However, this standard is not nearly as broad as the test under the Fair Labor Standards Act (which also looks at “economic realities” but emphasizes the “economic dependence” of workers rather than on control over the work environment. The Supreme Court has not directly ruled on the definition of employment relationships under the OSH Act. Because the OSH Act does not contain a special definition of employment relationships, recent Supreme Court holdings probably require application of the common law definition. See Darden. Anticipating that the Supreme Court might reject any modification of the common law test, the OSHRC now says that there is no practical difference between its current test and the common law standard. Loomis Cabinet Co., 1992 OSAHRC Lexis 65 (1992), Loomis Cabinet Co. v. OSH Review Commission, 20 F.3d 938 (9th Cir. 1994).

  9. In some cases, however, the government seems to prefer to assign “employer” status only to the one company that was most directly in charge of the job site and most capable of abating the hazard, and not to other companies, even when they recruit, hire, and pay the workers. CNG Transmission Corp., 1994 OSAHRC Lexis 12 (1994), Union Drilling, 1994 WL 86002 (1994) (companion cases).

  10. See US Department of Labor, Employment and Training Administration 2006).

  11. Some states’ public attorneys general (AGs), most notably New York’s governor-elect and former AG, Elliot Spitzer, have also taken up the challenge of litigating labor claims. As Attorney General, Governor-elect Spitzer investigated, assisted in the settlement of, and prosecuted numerous sweatshop cases, usually in tandem with community organizing groups and unions. Some highlights include brokering a community-backed green grocer’s Code of Conduct for the small green grocers in New York City, requiring the signatories to comply with wage and hour laws and to permit future monitoring by the Attorney General’s office, and cooperating in the grocery delivery case outlined above.

  12. Full Text of Mass Gen Law 149 at http://www.mass.gov/legis/laws/mgl/149-148b.htm.

  13. AB 633, codified as Cal. Labor Code § 2670 et. seq,.

  14. Recently, five California-based organizations, the Asian Pacific American Legal Center and Sweatshop Watch, in conjunction with the Asian Law Caucus, Women’s Employment Rights Clinic (WERC) at Golden Gate University School of Law, and the Garment Worker Center, released a study evaluating California's implementation of its landmark anti-sweatshop law seeking corporate accountability for sweatshop abuses in the garment industry, by enabling the state's garment workers to recover their unpaid wages from powerful apparel companies. The evaluation, "Reinforcing the Seams: Guaranteeing the Promise of California's Landmark Anti-Sweatshop Law, An Evaluation of Assembly Bill 633 Six Years Later," and its Executive Summary are available at http://www.apalc.org, http://www.sweatshopwatch.org, and http://www.asianlawcaucus.org. The study revealed lackluster state enforcement and widespread corporate disregard of what has been lauded as the strongest anti-sweatshop legislation in the nation, and includes various recommendations to realize the law's full potential.

  15. Daily News, “Cash Economy Threatens Wages, Tax Base,” Monday May 6, 2002. http://www.dailynews.com/news.articles/0502/06/Dnew01.asp.

  16. California Unemployment Ins. Code § 329.

  17. Fair Labor Standards Act, 29 U.S.C. §§ 201–219 (2004).

  18. Occupational Safety and Health Act, 29 U.S.C. §§ 651–678.

  19. National Labor Relations Act, 29 U.S.C. §§ 151–169.

  20. A full discussion of the federal law, regulations, and case law on waiting time and illegal deductions is beyond the scope of this article but is available from the National Employment Law Project.

  21. For information on this day labor center, see http://www.casademaryland.org

  22. See CASA de Maryland FY06 Annual Report, at http://www.casademaryland.org.

  23. E-mail from Kim Propeack, CASA de Maryland, to Rebecca Smith, National Employment Law Project (June 24, 2004) (on file).

  24. See CASA de Maryland FY06 Annual Report.

  25. See http://www.casa-latina.org.

  26. See http://www.economicintegrity.org/labors.htm: http://ww.fairjobs.org/news/ir.php.

  27. Press release, Mexican American Legal Defense and Educational Fund, MALDEF to Sue Regarding Anti-Day Laborer Ordinances in Racho Cucamanga and Upland (Sept. 19, 2002), at http://www.maldef.org/news/press.cfm?ID=119.

  28. Propeack, supra note 23.

  29. Janice Fine, Workers Centers: Building Community at the Edge of the Dream (2006).

  30. For information on the National Day Laborer Organizing Network, see http://www.ndlon.org.

  31. Preston v. Settle Dwn Enterprises, 90 F.Supp. 2d, at 1278-81.

  32. NY Lab. Law § 193.

  33. Angelo v. Labor Ready, (Nov. 16, 2006), at http://www.nycourts.gov/courts/appeals/decisions/nov06/149opn06.pdf.

  34. Split Decision on Labor Ready Check Cashing Fees, DAILY LABOR REPORT (March 1, 2004), reprinted at http://www.fairjobs.org/fairjobs/news/lr.php. Labor Ready’s check-cashing fees are also being litigated in Georgia and California, and Massachusetts has ordered Labor Ready to stop charging for check cashing. Christopher D. Cook, Street Corner, Incorporated, MOTHER JONES, March–April 2002, at 65–69, available at http://www.motherjones.com/news/feature/2002/03/street_inc.html.

  35. Tom Saenz, Day Laborers and the First Amendment (2003), at http://www.ndlon.org/civilr.htm. An ordinance enacted in Austin, Texas, makes it illegal to solicit work from a pedestrian from an automobile or for a pedestrian to solicit someone in a vehicle. Austin, Tex., Ordinance 990722-65. A Dade County, Florida, ordinance penalizes those who pick up laborers. Dade County FL, Ordinance 93–105, §§1–3, 10–19.

  36. Naush Boghossian, Laborers Sue City over Solicitation of Jobs Prohibition, DAILY NEWS OF LOS ANGELES, May 21, 2004, at N3.

  37. H.R. 2870, 108th Cong. (2003).

  38. Both the bill and a summary of it are available at http://www.nelp.org.

  39. 81ARIZ. REV. STAT. §§ 23-551 et seq. (2004); FLA. STAT. ANN. §§ 448.20 et seq. (West 2004); GA. CODE ANN. §§ 34-10-1 et seq.(2004); 820 ILL. COMP. STAT. 175/1 et seq. (2004); TEX. LAB. CODE ANN. §§ 92.001 et seq. (2004).

  40. A comparison of the provisions of each of the laws is available at http://www.nelp.org. The National Employment Law Project has developed a drafting guide (Drafting Day Labor Legislation: A Guide for Organizers and Advocates) to assist groups in implementing policy changes in their state.83 For policy advocates and day labor organizers, the guide has step-by-step directions for drafting day labor legislation. Each step discusses principles and the specific elements to advocate in protective day labor legislation. The guide offers model language to propose to policymakers for each of the elements, and the appendix includes a survey of state laws that protect day laborers and regulate day labor agencies. It is at http://www.nelp.org

  41. 84ALASKA STAT. § 3.10.060(2) (Michie 2004); CAL. LAB. CODE § 510 (West 2004); NEV. REV. STAT. 08.018(1)(b) (2004); N.Y. COMP. CODES R. & REGS. tit. 12, § 142-2.4 (2004).

  42. Pub. Act 094-0511, at =09400HB3471enr&GA=94&SessionId=50&DocTypeId=HB&LegID=19724&DocNum=3471&GAID=8&Session=

References

  • Economic Policy Institute. (1999). The state of working America. Washington, DC: Economic Policy Institute.

    Google Scholar 

  • National Alliance for Fair Employment. (2000). Contingent workers fight for fairness. Available at http://www.fairjobs.org.

  • National Employment Law Project. (1997). Mending the unemployment compensation safety net for contingent workers. Available at http://www.nelp.org.

  • National Employment Law Project. (2005a). Changing workforce, changing economy: State unemployment insurance reforms for the 21st Century. Available at http://www.nelp.org.

  • National Employment Law Project (2005b). State SUTA Dumping proposals, many bills falling short at protecting state trust funds, workers and employers . Available at http://www.nelp.org.

  • Roberts, W., & Barley, T. (2004). The wages of day labor: Homeless workers in the temporary help industry. Journal of Poverty, 8, 11.

    Google Scholar 

  • Smith, R., & Emsellem, M. (2002). Contingent rights: The legal landscape for nonstandard workers in California. Available at http://www.nelp.org.

  • Southwest Center for Economic Integrity. (2004). Brokered & street corner day labor in New Mexico. Available at http://www.economicintegrity.org/NM_Day_Labor_Data_Summary.pdf.

  • Theodore, N. (2000). A fair day’s pay? Homeless day laborers in Chicago. Report Prepared for the Chicago Coalition for the Homeless, Chicago Interfaith Committee on Worker Issues, and Chicago Jobs with Justice. February 22.

  • US Department of Labor, Employment and Training Administration. (2006). Comparison of state unemployment insurance laws. Washington, DC: US Department of Labor.

    Google Scholar 

  • US General Accounting Office. (2000). Contingent workers: Income and benefits lag behind those of rest of workforce. GAO-HEHS-00-76. Washington, DC: US Government Accounting Office.

    Google Scholar 

  • US General Accounting Office. (2002a). Collective bargaining rights: Information on the number of workers with and without bargaining rights. GAO-02-835. Washington, DC: US Government Accounting Office.

    Google Scholar 

  • US General Accounting Office (2002b). Worker protection: Labor’s efforts to enforce protections for day laborers could benefit from better data and guidance. GAO-04-472. Washington, DC: US Government Accounting Office.

    Google Scholar 

  • US Government Accounting Office. (2006). Employment arrangements: Improved outreach could help ensure proper worker classification. GAO 06-656. Washington, DC: US Government Accounting Office.

    Google Scholar 

  • Valenzuela, Jr., A. Theodore, N., Meléndez, E., & Gonzalez, A. L. (2006). On the corner: Day labor in the United States. Center for the Study of Urban Poverty, UCLA, Working Paper. January 23.

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  1. National Employment Law Project, 407 Adams St, SE, Suite 203, Olympia, WA, 98506, USA

    Rebecca Smith

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Smith, R. Legal Protections and Advocacy for Contingent or “Casual” Workers in the United States: A Case Study in Day Labor. Soc Indic Res 88, 197–213 (2008). https://doi.org/10.1007/s11205-007-9209-0

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